105th Nebraska Legislature: 20 Bills Warranting Particular Watchfulness

The Second Session of the 105th Nebraska Legislature convened on January 3, 2018. Bill introductions concluded on January 18, 2018. At the conclusion of bill introductions, we identified 20 bills warranting particular watchfulness:

ECONOMIC DEVELOPMENT

• LB 919, LB 1023 and LB 1084 would sunset the Nebraska Historic Tax Credit program on December 31, 2018. Under current law, the program would sunset on December 31, 2022.
• LB 919 would also establish the Student Loan Repayment Tax Credit Act, which would provide employers a tax credit for repaying an employee’s student loans.
• LB 1023 would also sunset other tax incentive programs.
• LB 1084 would also amend, revise, and/or reissue 32 sections of Nebraska Statues and their cumulative supplements relating to taxation; (ii) adopt Property Tax Request Limitation Act; and (iii) prescribe time periods for adopting the Personal Property Tax Relief Act, the New Markets Job Growth Investment Act, and the Nebraska Job Creation and Mainstreet Revitalization Act.

REAL ESTATE

• LB 756 would preclude local governing bodies from adopting ordinances prohibiting the short-term rental of residential properties. As amended by the Urban Affairs Committee, this bill would also facilitate audits of, and local tax collection by online hosting platforms through which short-term rentals of residential properties are set up.

TAXES AND TAX EQUALIZATION

• LB 905 would require the county assessor to carry the burden of proof for a tax protest before county boards of equalization. Under current law, the taxpayer carries the burden of proof.

ENERGY/RENEWABLE ENERGY

• LB 722 would require certain Nebraska public power districts to produce at least 20 percent of their power from renewable energy sources by July 1, 2020. Such sources include: solar, wind, hydropower, methane gas, non-hazardous-biomass, and geothermal energy but do not include nuclear power or hazardous-biomass. Districts subject to LB 722 are limited to those with territory consisting of more than fifty 50 percent of “all or part of the total number of counties in Nebraska.” Based on this criterion, LB 722 would only affect the Nebraska Public Power District.
• LB 723 would change the maximum capacity allowed for net metering of consumer-generated electricity from 25 kilowatts to 100 kilowatts. Accordingly, larger consumer-generated electric facilities could reap the benefits of net metering under LB 723.
• LB 820 would provide for deadlines and penalties for private electric suppliers who commence construction of privately developed renewable energy generation facilities and fail to provide the notice to the Power Review Board under section 70-1014.02. LB 820 would also create a clear process for entities that miss the deadline under section 70-1014.02 to correct their non-compliance.
• LB 821 would provide the Power Review Board additional authority to levy assessments against public power districts, public power and irrigation districts, electric membership associations, electric cooperative companies, and municipalities to cover the Power Review Board’s expenses.
• LB 901 would require the Director of the Nebraska Department of Aeronautics to specifically consider “terrain flight training areas” designated by the United States Department of Defense or the Nebraska National Guard when reviewing permit applications to build structures exceeding 150 feet in height and to deny any such applications if the proposed structure would significantly impact any such location. In essence, this would provide an added layer of bureaucracy to the approval and permitting process for wind energy facilities. This would be duplicative of existing federal processes.
• LB 1054 would eliminate wind energy facilities from the definition of “privately developed renewable energy generation facility” under the statutes governing the Nebraska Power Review Board (“NPRB”). Currently, privately developed renewable energy generation facilities, including wind facilities, are exempt from the NPRB’s application and approval process if the facilities meet certain criteria. Under LB 1054, wind facilities would no longer receive this exemption, thereby creating a considerable deterrent to wind development in Nebraska. LB 1054 would also allow members of the public to intervene and present evidence as part of the Nebraska Power Review Board’s approval process for all types of facilities.

MUNICIPAL LAW

• LB 752 would limit the scope of public power districts’ or municipalities’ acquired rights-of-way by preventing access to third parties to the rights of way for the sale of electric energy. Accordingly, the bill would curb private energy development by decreasing access to ground suitable for transmission lines.
• LB 854 would expand the ability to establish a land bank from cities of the metropolitan class to all cities and villages in the state. Land banks are governmental entities (or nonprofits) that acquire vacant, abandoned and tax-delinquent properties with the goal of fixing such (legal) defects and making the properties more desirable to buyers and redevelopers.
• LB 989 would allow cities, alone or in partnership with private entities, to conduct pilot projects aimed at testing autonomous vehicles and prescribe regulatory standards for such testing.

TAX-INCREMENT FINANCING

• LB 846 would require that governing bodies make written findings, supported by “clear and convincing evidence,” as to the “but-for test” (i.e., that a redevelopment project would not be economically feasible without the use of tax-increment financing) for the approval of redevelopment plans that utilize tax-increment financing. Additionally, LB 846 would require two affidavits from public finance experts in support of the written findings.
• LB 967 would eliminate a municipality’s ability to treat undeveloped vacant land and land outside of the city limits—not located within a blighted or substandard area—as redevelopment areas for purpose of tax-increment financing. Under current law, a governing body may acquire and develop land that is either (a) vacant and within the city limits or (b) within a 3-mile radius of the city, if the governing body determines that such acquisition and development is essential to redevelopment of substandard or blighted areas or necessary to further the general redevelopment program of the city. LB 967 would eliminate this power.
• LB 874 proposes a number of full-scale changes to Nebraska’s community redevelopment and tax-increment financing (“TIF”) laws. Specifically, LB 874: (i) would alphabetize the definitions in the Community Redevelopment Act; (ii) would allow an appointee from the county and school district to serve as non-voting members on the municipality’s redevelopment agency; (iii) would allow for audits of redevelopment plans at the discretion of the public auditor or the governing body and the results from such audits be publically available; (iv) would require that municipalities place proceeds from repayment of a loan made for the purpose of financing of a redevelopment project into the general fund rather than a revolving loan fund; (v) would require public hearings for all determinations made by the governing body during the community redevelopment process; (vi) would require notice to all relevant taxing jurisdictions for each public hearing held by the governing body with respect to all determinations made during the community redevelopment process; (vii) would eliminate a governing body’s ability to consider a redevelopment plan if the planning commission fails to make a recommendation within 30 days of the plan’s submission; (viii) would provide a registration process for neighborhood associations wishing to receive notice of any public hearings during the community redevelopment process; (ix) would require the redevelopment authority to consider the impact on student populations of school districts as part of its cost-benefit analysis for each redevelopment project; (x) would require the governing body to make publically available all blighted and substandard studies and all cost-benefit analyses; (xi) would require the governing body retain all documentation related to redevelopment projects for up to 18 years, including all invoices for TIF-eligible expenses; (xii) would require the implementation of an auditing plan for previously-approved redevelopment projects; (xiii) would require a yearly status report by the planning commission related to all active TIF projects; (xiv) would require that all TIF proceeds intended to fund only a portion of a redevelopment project area go toward redevelopment costs in such area; and (xv) would require notice from the county treasurer to each taxpayer of the allocation of property taxes between a TIF-eligible redevelopment project and other taxing jurisdictions within the area.
• LB 1085 would create a 20-year tax increment financing amortization period for projects in “extremely blighted” areas. Under the current law, the amortization period may not exceed 15 years. Under LB 1085, those areas determined by the governing body to be “extremely blighted”—i.e., double the state’s average rate of unemployment and a 20% higher poverty rate than the surrounding areas—receive 5 additional years of tax-increment financing. LB 1085 encourages redevelopment in areas that developers would not otherwise touch, even with the use of normal tax-increment financing.

TELECOMMUNICATIONS

• LB 966 would provide an exemption from tax for the sale or lease of dark fiber.
• LB 994 has two major parts: 1) it would create a task force to address rural broadband access, which includes a spot for a public power district stakeholder representative, and 2) it would create a public record before the Public Service Commission (PSC) for disgruntled customers to file complaints against their telecom providers, and would empower the PSC to withhold Nebraska Universal Service Funds (USF) and re-assign service territories to other telecom providers.